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By Matthew Russell Lee, Patreon
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SDNY COURTHOUSE, June 1 – The COVID-19 pandemic has brought back to light some defendants who have been incarcerated for decades, under the drug laws of that time. Victor and Jorge Torres were arrested in 1987 for heroin dealing in the South Bronx. And they have been in jail since - until, after two months of briefing, they were ordered released by U.S. District Court for the Southern District of New York Judge Sidney H. Stein on June 1, 2020. From his decision: "During the early 1980s, Jorge and Victor Torres were involved with a large-scale, street-level heroin distribution network operating mainly out of the South Bronx. Through this conspiracy, the Torres brothers acquired large sums of cash, which they used to acquire business and real-estate holdings in Puerto Rico. Jorge and Victor were arrested in June 1987 and charged with numerous crimes related to the heroin conspiracy. The case proceeded to jury trial, and the Torres brothers were convicted in July 1988 of, among other crimes, conspiracy to distribute heroin in violation of 21 U.S.C § 846 and conducting a continuing criminal enterprise in violation of 21 U.S.C. § 848(a) and (b). Section 848(b), sometimes called the “kingpin” provision, mandates a sentence of life imprisonment without the possibility of parole where certain conditions are satisfied. If those conditions are not satisfied, the defendant is guilty only of a violation of section 848(a), a lesser-included offense. For a section 848(a) conviction, a life-without-parole sentence is permitted but not required. The brothers’ sentencing judge, then–U.S. District Judge John M. Walker, sentenced Jorge and Victor—twenty-nine and twenty-five years old, respectively, at that time—to life imprisonment without the possibility of parole, finding that the conditions of the kingpin provision had been satisfied. On appeal, the U.S. Court of Appeals for the Second 1 For clarity, the Court will refer to each brother by his given name where appropriate.  2  Circuit held that erroneous jury instructions had been given for the section 848(b) count. The Second Circuit therefore vacated the sentences and remanded with instructions to resentence the Torres brothers under section 848(a). United States v. Torres, 901 F.2d 205, 229 (2d Cir. 1990).  On remand, Judge Walker again sentenced the Torres brothers to life without parole. While he acknowledged that the brothers were “committed to trying to conduct themselves in prison in a way that [was] meaningful and consistent with their religious convictions,” he ultimately concluded that “this sentence ha[d] to send a message and continue to send a message to community.” (Sentencing Tr. at 25:6–11, Defs.’ Mem. Ex. 9, ECF No. 550-9.) Jorge and Victor again appealed, this time arguing that their sentences constituted cruel and unusual punishment in violation of the Eighth Amendment. The Second Circuit rejected this claim and affirmed their life sentences. United States v. Torres, 941 F.2d 124, 128 (2d Cir. 1991). Jorge and Victor—now sixty-three and fifty-nine, respectively—have spent over half of their lives in prison. As explained below, both have maintained an exemplary record while in prison. Despite their life-without-parole sentences, the Torres brothers have, by all accounts, made the most of the last three decades—they have enrolled, in and completed, extensive coursework, worked diligently at their respective jobs, and engaged in various community service and mentorship opportunities.  During this time, Jorge and Victor also sought various forms of postconviction relief, without success. As part of these efforts, in January 2017, the brothers petitioned the U.S. Department of Justice’s Office of the Pardon Attorney for a sentence commutation. Judge Walker—now serving as a U.S. Circuit Judge on the Second Circuit—took the notable step of writing in support of the brothers’ commutation petitions as follows: [I]n my view, the Torres’ continued incarceration is not necessary to serve the needs of our criminal sentencing scheme. In more than 32 years on the bench, this is the first time that I have supported a commutation. But it is the first time that I have encountered convicted individuals whom I have sentenced that have rehabilitated themselves so completely and have rejected their criminal pasts so resoundingly. (Walker Letters at 3, Defs.’ Mem. Ex. 2, ECF No. 550-2 (citation omitted).) Despite Judge Walker’s support, the brothers’ commutation petitions were ultimately denied. In December 2018, Congress enacted the First Step Act, Pub. L. No. 115-391, 132 Stat. 5194 (2018), which opened the door for a defendant to seek a sentence reduction if “the defendant has fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant’s behalf or the lapse of 30 days from the receipt of such a request by the warden of the defendant’s facility.” Id. § 603(b), 132 Stat. at 5239. In accordance with this process, Jorge and Victor filed a request in November 2019 with the warden of their facility, the Federal Correctional Institution in Fairton, New  3  Jersey (FCI Fairton). Both requests were denied. (Jorge Request at 3, Defs.’ Mem. Ex. 11, ECF No. 550-11; Victor Request at 3, Defs.’ Mem. Ex. 12, ECF No. 550-12.) The Torres brothers then filed this motion for a sentence reduction with this Court, under the First Step Act’s new procedure, on April 2, 2020. The government filed its opposition to the motion on April 15, 2020 (see Gov’t Opp’n at 1), and the brothers filed a reply brief on April 20, 2020 (see Defs.’ Reply at 1, ECF No. 555). The motion is thus fully briefed and ready for adjudication. ... there can be no question that—as several judges in this district have recognized—“the COVID-19 pandemic presents an extraordinary and unprecedented threat to incarcerated individuals.” Scparta, 2020 WL 1910481, at *9; accord United States v. Nkanga, No. 18-CR-713 (JMF), 2020 WL 1529535, at *1 (S.D.N.Y. Mar. 31, 2020); United States v. McKenzie, No. 18 CR. 834 (PAE), 2020 WL 1503669, at *3 (S.D.N.Y. Mar. 30, 2020)... the Court holds that the totality of the Torres brothers’ circumstances—their thorough and long-term rehabilitation, exemplary community service, and the high risk presented by the COVID-19 pandemic—provides “extraordinary and compelling reasons” for a sentence reduction. Thus, the Court finds that the statutory criteria for a sentence reduction are satisfied and that a sentence reduction is warranted. III. CONCLUSION For the reasons stated above, the Court GRANTS Jorge and Victor Torres’s motion for a sentence reduction under 18 U.S.C. § 3582(c)(1)(A). The Court resentences Jorge and Victor Torres to time served. It is FURTHER ORDERED that the parties shall meet and confer and submit a proposed order governing the conditions of defendants’release no later than June 4, 2020, at 12:00 p.m."  Inner City Press will stay on this case, which is US v. Torres, et al., 87-cr-593 (Stein).  

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